The declaration that:
it is emphatically the province and duty of the Judicial department to say
what the law is
 comprehends the following
principle; that the Supreme Court is the final interpreter of the law and its
declaration, that the doctrine of separation of powers assign the
interpretation and declaration of law and all state actions to the
constitutional courts and no authority other than the Superior Courts can
arrogate to themselves the power to exclusively and authoritatively interpret,
and set the stage for execution of law and the constitution.
By virtue of Article 13 of the Constitution, the declaratory power of the Court
arises from its authority to adjudge laws which are inconsistent with the
Constitution and to declare them void. The Court is the final and permanent
assembly of producer of law.
Article 141 of the Constitution provides that the law declared by the Supreme
Court shall be binding on all courts within the territory of India. The general
principles laid down by the Supreme Court are applicable to each individual
including those who are not party to an order.
A special leave petition (SLP) does not by itself render the impugned decision a
binding precedent. When reasons are given by the Court for dismissing a SLP, the
decision attracts Article 141. A mere reading of Article 141 hints at its
expansive and all-inclusive nature. In cases where a number of petitions are
disposed of by the High Court vide a common judgment and only one appeal is
filed and the apex court decides it, the parties to the common judgment should
intervene during the proceedings are going on in the Supreme Court and cannot
later plead ignorance of such a fact.
The Supreme Court is not only a constitutional court but is at the top of the
hierarchy of our judicial system. By virtue of Article 141, its decision is the
law of the land. Its main role is to interpret constitutional provisions and to
promote governance by rule of law. Its role, therefore, is to really
interpret the law and decide cases coming before it, according to law.
Article 141 incorporates the English law doctrine of stare decisis. The
doctrine envisages that lower courts are bound by decisions of higher
courts. This doctrine is based on the principle that laws that govern the
society at large should be fixed, definite and known. The doctrine should always
be strictly adhered to by the courts in order to avoid confusion and
Ratio decidendi and obiter dicta
A decision is binding not because of its conclusion but by virtue of its ratio
and the principles laid down therein. The ratio decidendi is the underlying
principle, the general reasons or the general grounds upon which the decision is
based as distinct from the special peculiarities of a case, which gives rise to
Obiter dicta are statements which are not part of the ratio viz., observations
by the Court which are not binding statement of law. The obiter dictum is a
mere observation or remark made by a court while deciding the actual issue
before it and these casual remarks are considered or treated as beyond the ambit
of the authoritative or operative part of the judgment. Well
considered obiter dicta of the Apex court are taken as precedents and binding
under Article 141.
literally means carelessness
. A decision rendered in
ignorance of a previous binding decision of its own or of a court of coordinate
or higher jurisdiction or ignorance of the terms of a statute or of a rule
having the force of law locks precedent value, is one such exception and is
described as per incurium judgement.
This is now a well accepted notion in decision making. Prospective declaration
of laws is a device innovated by the Supreme Court to avoid reopening of settled
issues and prevents multiplicity of proceedings. This is basically to avoid
unnecessary litigation and is done in larger public interest.
Supreme Court not bound by its own decisions
The Constitution has not decidedly enacted that Supreme Court will be bound by
its own decisions. This is necessary for proper development of law and
principles of justice. No constitutional embargo prevents Supreme Court from
departing from its previous decision.
Advisory opinion given under Article 143 is binding
Article 143 deals with the power of President to consult the Supreme Court.
Opinion expressed by the Apex court under this provision will be binding on all
courts in view of Article 141.
Decision by a foreign court
The decisions of the English courts being merely of persuasive nature will
not ipso facto justify an application to reconsider an earlier decision of the
The Supreme Court of India is on the top of the hierarchy of courts and hence
it is imperative for its decisions to have a finality attached to them. This
finality can only come from the binding nature of these decisions so that an end
can be marked to the litigation process. Hence, the binding nature of the
Supreme Court decisions is an important aspect of the justice delivery system in
- Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
- Rajeswar Prasad Misra v. State of West Bengal, 1966 (1) S.C.R. 178.
- Cooper v. Aaron, 358 U.S. 1 (1958).
- P. Kannadasan v. State of Tamil Nadu, A.I.R. 1996 S.C. 2560.
- Ganga Sagar Corporation v. State of Uttar Pradesh, A.I.R. 1980 S.C. 286.
- Union of India v. All India Services Pensioners Association, A.I.R. 1988
- Shenoy and Co. (MIs) v. Commercial Tax Officer, Circle II, Bangalore,
A.I.R. 1985 S.C. 621.
- S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918.
- Secretary, State of Karnataka v. Umadevi, (2006) 4 S.C.C. 1.
- Re-examining the basis of previous decisions, Smith v. Allwright, 321
U.S. 649 (1944).
- Sakshi v. Union of India, A.I.R. 2004 S.C. 3566.
- Payne v. Tennessee, 501 U.S. 808, 827 (1991).
- B.Shama Rao v. Union Territory of Pondicherry, A.I.R. 1967 S.C. 1480.
- Krishna Kumar v. Union of India, A.I.R. 1990 S.C. 1782.
- Prithi Pal Singh Bedi v. Union of India, A.I.R. 1982 S.C. 1413.
- Arunkumar Agarwal v. State of Madhya Pradesh, A.I.R. 2011 S.C. 3056.
- Mohd. Saud v. Shaik Mohfooz, A.I.R. 2009 Ori 46.
- Central Board of Dawoodi Bohra Community v. State of Maharashtra, A.I.R,
2005 S.C. 752.
- Harsh Dhingra v. State of Haryana, (2001) 9 S.C.C. 550.
- Suganthi Suresh Kumar v. Jagadesan, A.I.R. 2002 S.C. 681.
- In re, The Special Courts Bill, A.I.R. 1979 S.C. 478.
- Manipur Adm. V. Bira Singh, A.I.R. 1965 S.C. 87.